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A decision maker must not only be impartial between and independent of the parties, but also provide reasons for decision visibly demonstrating the work the decision-maker has been called upon to do. As part of procedural fairness, a decision maker must show he or she has grappled with the case, especially the evidence and arguments of the losing party. Only in this way can the decision maker disclose reasoning both informing the losing party why he or she has lost, and permitting a reviewing body to assess the decision. A decision-maker who fails to grapple with the evidence and the arguments of the losing side, and who instead adopts the submissions of the winning side, may have his or her impartiality called into question.

For example, even where reasons contain all the findings necessary to support a decision as a reasonable conclusion, a decision maker who adopts the submissions of one party and also fails to address opposing positions may appear biased as a result. This is demonstrated in Cojocaru (Guardian ad litem) v. British Columbia Women’s Hospital and Health Centre, 2011 BCCA 192. That case involved a lengthy (30-day) trial concerning an infant suffering brain damage during his birth at the defendant hospital. The plaintiff alleged negligent treatment.

The trial reasons were substantial (2009 BCSC 494), but the content of the reasons for judgment arose from the trial judge adopting, largely verbatim, much of the plaintiff’s submissions as part of the judgment, without attributing passages to the plaintiff. A majority of the Court of Appeal (2-1) found unfairness, due to an appearance of partiality arising from the nature of the reasons.

In dissenting reasons, one appellate judge agreed the fact of the trial judge adopting findings and conclusions proposed by one side created an appearance of his relinquishing his judicial authority to that party, thus opening the decision to challenge, but concluded that a reasonable and informed observer would not infer the trial judge shirked his duty (e.g., given passages in the reasons showing the judge applied his mind to the issues). The majority concluded otherwise.

While Cojocaru involves a judge and not tribunal adjudicators, the key points of the case are just as important if not more important in tribunal forums where adjudicators may be lay persons:

The requirement of fairness will not be met if reasons are such that a reasonable and informed observer would not infer the decision maker did apply his or her own reasoning to the case. [113] This failure may arise from failures of the decision-maker to consider the losing side’s arguments and evidence, acknowledge conflicts in the evidence, and acknowledge or deal with cogent arguments by the losing side, in order to inform that losing party of the reason for the loss.

A failure of a decision-maker to attribute to a party portions in reasons taken from a party’s submissions “may lead to the impression that the judge has not done the work which he is called upon to do….” [121]

The process of writing reasons which meet these requirements also helps to ensure fair and accurate decision-making, as “the task of articulating the reasons directs the judge’s attention to the salient issues and lessens the possibility of overlooking or under-emphasizing important points of fact or law….” [123]

While the dissenting judge in Cojocaru noted, “there is nothing inherently wrong with adopting the submissions of a party in whole or in part as reasons for judgment so long as those submissions truly and accurately reflect the judge’s own independent analysis and conclusions,” the majority concluded the form of the reasons in that case, being “substantially a recitation of the respondents’ submissions,” was itself “cogent evidence” displacing the presumption of impartiality. [127]

As the dissenting appellate judge noted, “judges should not forget that submissions are argumentative and partisan and they must therefore take pains to ensure that no important evidence or argument that might support the other side is overlooked.” [31] The failure of the trial judge to explain why he was rejecting counter-arguments led the majority to infer a reasonable and informed observer “could not be persuaded that the trial judge independently and impartially examined all of the evidence and arrived at his own conclusions,” such that the trial judge failed to “properly grapple with this case.” [127]